Each of the corporate entities associated with this lawsuit are, or were, engaged in the specialty advertising business. Specialty advertising items include coffee cups, pencils, calendars and the like, emblazoned with a company's logo or slogan. As is custom within the industry, specialty advertising businesses do not directly solicit orders from companies seeking their services. Rather, they rely on independent, commissioned sales agents who solicit the orders, forwarding them to the specialty advertising business. The specialty advertising business would produce the ordered items and ship them directly to the customer. The customer would pay the specialty advertising business, which in turn remits a commission to the agent who originally solicited the order.

Let me take a moment to reintroduce myself. My name is Noah Willens, the son of the late David Willens. As you will recall, David was the president of Wilco Advertising Specialty Company. He and I had worked side by side for many years in the business. After a long and valiant fight with lung cancer David passed away in 1986. For various personal reasons I and my family decided to close the company.

Alas, I found that I could not and did not want to get the business out of my blood! So, in 1989 I reopened the company under the name of the Incentive Network Ltd.. Due to a legal obligation I could not contact you until now to give you the great news.

[Listee], as I recall, you were a very valuable asset to the Wilco family. I would be truly honored if you would consider the possibility of rejoining our Advertising Specialty House! You will find The Incentive Network to be an extremely friendly, warm, sincere and family oriented business. Just exactly the same qualities that David fought to maintain as President of Wilco.

In this day and age of huge corporations and computerization we can loose track of the fundamental concept that the people that make up the company are human beings! Although The Incentive Network is a highly organized, professional and computerized company, you will always be treated as a cherished member of the family, not a number in the crowd!

As an added incentive for you to "come home" I would like to extend a very special offer. Rather than the usual 50/50 split of gross profit, you can permanently receive 55% of the gross profit with The Incentive Network! Please examine the enclosed commission code sheet and compare this to what you are currently receiving in commissions.

[Listee], it would be my pleasure to speak with you personally to answer any questions you may have! Please use our toll free number, . . . .

The gravamen of Willens' second contention is that whatever the duty he may have owed to Kaeser, such duty terminated with his departure from Wilco and Kling. Viewing Kaeser's claim in terms of protectable property rights, however, reveals Willens' timing argument as hollow. Under Illinois law,
*fn1"
an employer is said to have a "protectable business interest" in its clientele (distinct from a trade secret), vis-a-vis a former employee, when the information sought to be protected is kept confidential by the employer and acquired by the former employee only by virtue of his or her employment relationship. See Williams & Montgomery, Ltd. v. Stellato, 195 Ill. App. 3d 544, 553, 552 N.E.2d 1100, 1106, 142 Ill. Dec. 359 (1st Dist. 1990); Agrimerica, Inc. v. Mathes, 170 Ill. App. 3d 1025, 1031, 524 N.E.2d 947, 951, 120 Ill. Dec. 765 (1st Dist. 1988). In the instant case, Kaeser has set forth evidence indicating that the names of the sales agents it purchased from Wilco, Kling and Rita Willens were confidential (hence the $ 360,000 paid for such information), and that Noah Willens, learning of this confidential information only by virtue of his employment with Kling and Wilco, used the list for his own benefit. True, Noah Willens was not employed by Kaeser. However, he was an officer of both Kling and Wilco, and knew of the transfer of rights from those companies to Kaeser. Despite this knowledge, Noah Willens utilized the list in apparent violation of Kaeser's exclusive property interest. Under these circumstances, there is sufficient evidence from which a reasonable jury could conclude that Willens' usurped a protected property interest from Kaeser. Accordingly, we deny Willens' motion for summary judgment on Count II of Kaeser's complaint.

IV. Breach of Contract (Count III)

It is undisputed that neither Noah Willens nor Incentive Network was a party to the October 29, 1986 sales contract between Kaeser, Kling, Wilco and Rita Willens. Nonetheless, Kaeser seeks to hold both Noah Willens and Incentive Network directly liable under the contract, contending that defendants are successors to, the same as and/or the alter ego of Kling and Wilco.

While Count III represents a claim for breach of contract and, absent fraud in the inducement, corporate officers cannot be held personally liable for contractually incurred debts, see First Nat. Bank of Boston v. Heuer, 702 F. Supp. 173, 176 (N.D. Ill. 1988) (interpreting Illinois law), the instant case may warrant piercing Incentive Network's corporate veil to hold Noah Willens personally liable. In determining whether a corporation is so controlled by another to justify disregarding their separate identities, the Illinois courts focus on four factors: "(1) the failure to maintain adequate corporate formalities, (2) the commingling of funds or assets, (3) undercapitalization, and (4) one corporation treating the assets of another corporation as its own. Van Dorn, 753 F.2d at 570. Once unity of interest and ownership is established, the plaintiff must show that circumstances are such that adhering to the corporate fiction would constitute either the sanctioning of a fraud (intentional wrongdoing) or the promotion of injustice (some wrong beyond the inability to collect upon the debt). Sea-Land Servs., 941 F.2d at 522-524. We highlight the term "may" above to indicate the absolute devoid of facts from which we can assess the unity of interest and ownership between Noah Willens and Incentive Network. True, ordinarily "opponents to summary judgment motions cannot simply rest on their laurels, but must come forward with specific facts showing that there is a genuine issue for trial." Id. at 522. Nevertheless, we observe that defendants' motion for summary judgment was filed a mere thirty-six days after Kaeser instituted this action, leaving little, if any, time for Kaeser to engage in discovery on these relevant matters. As such, rather than resolving the issue on the basis of Kaeser's failure to meet its burden of production and possibly working substantial injustice to Kaeser, we will defer ruling on this matter until the record is more fully developed.

V. Conclusion

For the reasons set forth above, defendant Noah Willens and Incentive Network's motion for summary judgment on Counts II and III of Kaeser's complaint is denied. It is so ordered.

MARVIN E. ASPEN

United States District Judge

Dated 5/24/93

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